On April 25,1979, the plaintiffs husband, Willard S. Richards, was traveling south on South Lee Street in Americus, Georgia, in a 1978 Pontiac when a limb that extended over the street broke off and crushed the roof of the vehicle, crushing him and allegedly causing his death.
On July 25, 1979, the plaintiff, Janet Richards, filed her complaint for damages (since amended and restated) against the Mayor and City Council of Americus, N. G. Gilbert Corp., and Georgia Power Company.
On July 29, 1980, the trial court entered an order granting the motions of defendants N. G. Gilbert Corp. and Georgia Power for summary judgment. Plaintiff appeals those judgments. We affirm. Held:
The appellant first alleges: “The trial court erred in granting the motion of Defendant Georgia Power Company for summary judgment, thus concluding that the defendant was not negligent, the defendant did not maintain and create a nuisance, and the defendant did not have a duty to correct a dangerous condition which it created.”
Summary judgment can be granted by a trial court under the following circumstances:
Code Ann. § 81A-156 (c): “. . . The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law—”
Furthermore, “. . . When a motion for summary judgment is made and supported as provided in this section, an adverse party may not rest upon the mere allegations or denials of his pleading, but his
The complaint alleged that defendant-appellee Georgia Power was under a duty to correct and remove the dangerous condition of the tree and was negligent in failing to do so.
Georgia Power offered unrebutted evidence that it did not own the land where the tree was located and had only a limited license pursuant to franchise to “cut and trim trees ... to insure safe and efficient service” and had no other status on the premises and therefore had no duty to the injured party. Daniel v. Ga. Power Co.,
Municipalities themselves primarily are responsible for the safe condition of the public roads of the municipal street system (with liability limited to negligence arising from constructing and maintaining the streets where there is actual notice of or existence of negligence for such a length of time that notice thereof may be inferred, Code Ann. § 95A-505). The “defects in its streets” for which a municipal corporation may be held liable under the provision of this code section (and its predecessor) have been held to include objects adjacent to, and suspended over, the municipality’s streets and sidewalks, the presence of which renders the use of these thoroughfares more hazardous. Parker v. Mayor &c. of Macon,
Although there is some evidence that N. G. Gilbert’s foreman noted the condition of the offending tree at some point before April 25, 1978 and made a report to an employee of Georgia Power, the record contains no evidence of an affirmative duty to report those conditions to the city.
N. G. Gilbert Corp. is an independent contractor performing
As indicated, the franchise contains no independent requirement that Georgia Power maintain the streets in a safe condition. The franchise does require that “the Company shall, in constructing, maintaining, operating and extending its poles, wires and other apparatus, submit and be subject to all reasonable exercises of the police power by the City.” Thus Georgia Power and their contractor were bound to obey the following city ordinance: “ (1) No person, except the owner or his duly authorized agent, shall cut or trim any tree within the corporate limits of the city, except as follows:
“(a) Only during the months of November and December.
“(b) Only after the cutting or trimming thereof has been authorized in writing by the city engineer, and the particular part thereof to be cut or trimmed.
“(2) After cutting or trimming, the stump or stem remaining shall be treated in the manner prescribed by the city engineer so as to close up the wound or cut part, to prevent same from decaying. (Code 1929, Sec. 1435, 1436).” Code of Ordinances; City of Americus, Georgia, §§ 20-14, 261, 262.
The entity required to seek authority to trim trees is the owner. In this case that is neither Georgia Power nor N. G. Gilbert Corp. Even that authority is severely circumscribed by the city. Under such circumstances, the trial court properly determined there was no duty on Georgia Power or N. G. Gilbert Corp. to maintain safe streets or to inspect trees and make reports to the City of Americus for that purpose.
With this unrefuted evidence establishing the absence of any duty or negligence by this appellee, there was no genuine issue of fact to be decided by a jury and appellee was entitled to judgment as a matter of law (Chastain v. Atlanta Gas Light Co.,
In like manner, the appellant’s other enumeration alleges: “The trial court erred in granting the motion of [Defendant] N. G. Gilbert Corporation for summary judgment, thus concluding that the defendant was not negligent, the defendant did not maintain and
N. G. Gilbert Corp. trims trees along power lines for Georgia Power. This appellee presented evidence that prior to the year 1975, N. G. Gilbert Corp. did not have a tree trimming crew operating within the Americus District of Georgia Power on distribution lines, and since 1975 only one N. G. Gilbert Corp. tree trimming crew has worked on distribution lines within the Americus District of Georgia Power. The foreman of this tree cutting crew testified the crew had never trimmed the offending tree involved in this case. This appellee cut along lines designated by Georgia Power and had no status as to the property beyond that of Georgia Power. Therefore, no duty arose where there was no control over the premises or from the creation of a hazardous condition as required by Holcombe v. Harris,
Judgment affirmed.